JOHN M. FRANCE, Plaintiff-Appellant,
JEH JOHNSON, [*] Secretary, Department of Homeland Security, Defendant-Appellee
Argued and Submitted, June 9, 2015, San Francisco, California
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:10-cv-00574-JGZ. Jennifer G. Zipps, District Judge, Presiding.
Age Discrimination in Employment Act
The panel reversed the district court's summary judgment in favor of the United States Department of Homeland Security in an action by a border patrol agent alleging violation of the Age Discrimination in Employment Act (" ADEA" ).
The plaintiff alleged that the agency's decision to not promote him was age discrimination in violation of the ADEA.
The panel held that the plaintiff established a prima facie case of age discrimination. Specifically, the panel adopted the Seventh Circuit's approach which held that an age difference of less than ten years between the plaintiff and the replacements creates a rebuttable presumption that the age difference was insubstantial. The panel concluded that the plaintiff, although less than ten years older than his replacements, established a prima facie case of age discrimination by showing that the agency considered age in general to be significant in making its promotion decisions, and that the Tucson Chief Patrol Agent considered plaintiff's age specifically to be pertinent in considering plaintiff's promotion.
The panel agreed with the district court's conclusion that the agency articulated legitimate, nondiscriminatory reasons for not selecting plaintiff, namely, that plaintiff's qualifications did not meet the leadership and judgment required of the GS-15 positions.
The panel held that the district court erred in granting summary judgment, and in finding that plaintiff did not show a genuine dispute of material fact on whether the agency's nondiscriminatory reasons were pretextual. Specifically, the panel held that there was a genuine dispute of material fact as to whether the Chief Patrol Agent influenced or was involved in the hiring decisions of the GS-15 positions, despite that he was not the final decisionmaker. The panel also held that the district court erred in finding that the Chief Patrol Agent had a limited role in the decisionmaking process. Finally, the panel held that the district court erred in not considering the Chief Patrol Agent's retirement discussions with plaintiff in assessing whether the articulated nondiscriminatory reasons were pretextual.
Jeffrey H. Jacobson (argued), Jacobson Law Firm, Tucson, Arizona, for Plaintiff-Appellant.
Robert L. Miskell (argued), Assistant United States Attorney, Appellate Chief, John S. Leonardo, United States Attorney, District of Arizona, Tucson, Arizona, for Defendant-Appellee.
Before: Barry G.
Silverman, Ronald M. Gould, and Andrew D. Hurwitz, Circuit Judges.
GOULD, Circuit Judge
John France appeals the district court's entry of summary judgment in favor of the United States Department of Homeland Security in this action alleging violation of the Age Discrimination in Employment Act (" ADEA" ). We review a grant of summary judgment de novo. See Pac. Shore Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1156 (9th Cir. 2013). Viewing the evidence in the light most favorable to France, the non-moving party, we must decide whether there are any genuine disputes of material fact and whether the district court correctly applied the substantive law. See Olsen v. Idaho St. Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). ...